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Edara Pattabi Srirama Vs. Thadikammal Veerabhadra Appala China Rajanna and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1101 of 1972
Judge
Reported inAIR1973AP24
ActsCode of Civil Procedure (CPC), 1908 - Sections 47 and 115 - Order 21, Rules 62 and 66(2)
AppellantEdara Pattabi Srirama
RespondentThadikammal Veerabhadra Appala China Rajanna and ors.
Appellant AdvocateV. Lakshmi Devi, Adv.
Respondent AdvocateN.C.V. Ramanujachary, Adv.
Excerpt:
.....refusing to fix upset price in view of great disparity between values given by petitioner and decree-holder - court also giving direction to sell schedule property - sale proclamation issued by executing court furnishes market value given by decree-holder, judgment-debtor and court amin - order of court below in such circumstances not said to be vitiated by material irregularity in exercise of its jurisdiction - court not bound to make regular enquiry relating to market value of schedule property - held, order of court below not requiring any interference in this revision petition. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in..........and 'b' schedule properties were sought to be sold. the values furnished by the appellant and the decree holder in respect of the 'a' schedule property are rs. 1,20,000/- and rs. 25,000/- respectively. the court amin valued the same at rs. 40,000/-. the aforesaid values have been given in the sale proclamation. the request of the appellant to fix an upset price in view of the great disparity between the values given by him and decree-holder was rejected by the court which directed the sale of the property. aggrieved by that order, the appellant preferred this appeal.3. miss. v. lakshmi devi , the learned counsel for the appellant, relying upon the decision of the madras high court in arunachala thammal v. t. kanagasabathi pillai, : air1955mad720 , contends that the court should fix.....
Judgment:

Kondaiah, J.

1. This appeal by a judgment-debtor gives rise to a short question of procedural law as to whether the executing court is bound to fix an upset price under Order 21, Rule 66 (2) of the Code of Civil Procedure.

2. In order to appreciate the scope of the question, it is necessary to briefly state the material facts which are not in dispute and which lie in short compass; The 1st respondent obtained a money decree in O.S.No. 110 of 1969 for a sum of about Rs. 49,500/- on April 22, 1970 against the appellant and the respondents Nos. 2 and 3. In execution of the decree, 'A' and 'B' schedule properties were sought to be sold. The values furnished by the appellant and the decree holder in respect of the 'A' schedule property are Rs. 1,20,000/- and Rs. 25,000/- respectively. The court Amin valued the same at Rs. 40,000/-. The aforesaid values have been given in the sale proclamation. The request of the appellant to fix an upset price in view of the great disparity between the values given by him and decree-holder was rejected by the court which directed the sale of the property. Aggrieved by that order, the appellant preferred this appeal.

3. Miss. V. Lakshmi Devi , the learned counsel for the appellant, relying upon the decision of the Madras High court in Arunachala Thammal v. T. Kanagasabathi Pillai, : AIR1955Mad720 , contends that the court should fix upset price of the property in view of the wide disparity between the values given by her client and the decree-holder. This plea of the appellant has been resisted by Mr. N. C. V. Ramanujachari, the learned counsel for the decree holder, contending inter alia that the appeal is not maintainable. In reply, the appellant's counsel prayed for the conversion of the appeal into a civil revision petition in case this court uphold the preliminary objection relating to the maintainability of the appeal raised by the respondent.

4. On the facts and in the circumstances and upon the respective contentions of the parties, the following three questions arise for our decision:-

1). Whether the impugned order is or is not appelable?

2). If question No. 1 is answered in the negative, whether the appeal can be converted into a civil Revision Petition?

3). Whether the order of the court below is liable to be set aside on the ground of its failure to fix upset price in view of the wide disparity between the values given by the judgment-debtors and the decree holder in respect of the 'A' schedule property sought to be sold in Court Auction?

5. We shall first take up the questions No. 1 and 2 which can be conveniently disposed together. The request of the judgment-debtor to fix an upset price has been rejected by the lower court. The impugned order, therefore, pertains to the refusal of the court to fix an upset price for the 'A' schedule property sought to be sold in execution of the decree. The fixation of an upset price or refusal to do so by the executing court is not a judicial act done in execution, discharge or satisfaction of the decree within the meaning of section 47 of the Code of Civil Procedure. Nor does it relate to the execution, discharge or satisfaction of the decree. It is only such of the questions arising between the parties to the suit which relate to the execution, discharge or satisfaction of the decree that can be determined by the executing court. Hence, we are of the view that the question decided by the court below does not relate either to execution , discharge, or satisfaction of a decree. We, therefore, hold that the appeal in the instant case is incompetent. (See Raghunatharaju v. , (1965) 2 Andh WR 481).

6. It is well settled that this court, under Section 115 of the Code of Civil Procedure, has ample power and jurisdiction to suo motu call for the record of any case which has been decided by any court subordinate to this court and in which no appeal lies thereto. This Court can entertain a civil revision petition if there is an error of jurisdiction. As the records of this case are before this court, we see no valid or justifiable ground to refuse the request of the appellant to convert this appeal into a civil revision petition under Section 115, C. P. C. We, therefore, convert this appeal into a civil revision petition and proceed to examine the merits of the case on that basis.

7. We shall now turn to the third question relating to merits. The answer to this question depends upon the provisions of clauses (c) and (f) of sub-rule (2) of Rule 66 in Order, 21, C. P. C., applicable to Andhra Pradesh, which read thus :

' such proclamation shall be drawn up after notice to the decree-holder and judgment debtor and shall state the time and place of sale and specify as accurately as possible.

(a) to (d)......................................................................................................................

(e) the value of the property as stated (i) by the decree-holder and (ii) by the judgment debtor; and

(f) every other thing which the court considers material for a purchaser to know in order to judge of the nature and value of the property.'

8. Before examining the cope and application of the clauses (3) and (f), we may usefully refer to Rule 64 and 66 (1). Rule 64 empowers the executing court to order any property attached by it to be sold and provides for the payment of the sales proceeds to the person entitled to the same. Rule 66 (1) enjoins the court to make a proclamation of the intended sale in the language of such court. Sub-rule (2) to Rule 66, prescribes the procedure to be followed in making such proclamation. According to the rule 66 (2), the sale proclamation shall state the time and place of sale and specify as accurately as possible the particulars mentioned in clauses (a) to (f) thereof. The proclamation shall be drawn up only after notice to the decree-holders and the judgment debtor. It is well settled that any material irregularity in the publication or conduct of sale resulting in substantial injury to the judgment debtor would vitiate the sale and such a sale is liable to be set aside under Order 21, Rule 90, C. P. C. The very intendment and object of furnishing the particulars specified in clauses (a) to (f) of sub-rule (2) to Rule 66 in order 21, C. P. C. Is to afford a fair opportunity and provide a guide for the intending purchasers to assess the true and real market value of the properties sought to be sold and to enable them to offer a fair, proper and reasonable price. That apart, the judgment debtor-s interest would be amply safeguarded as it would be to his advantage to get a fair and reasonable price for the property put up for sale.

9. We shall now examine the contention of Miss Lakshmi devi that the court has a statutory duty and obligation to fix the upset price where there is a wide disparity between the values furnished by the judgment debtor and the decree-holder. Reliance is placed upon the provisions of clause (f) of sub-rule (2) of Rule 66 in support of her plea. Before examining the scope of that clause, we may conveniently consider the applicability of clause (e) of that sub-rule. This clause was not there before 1936. To give effect to the decision of a division Bench of Madras High court in Thiruvengadasami Ayyangar v. Govindaswami Udayar, ILR 51 Mda 655 = (AIR 1928 Mad 503), an amendment inserting clause (e) in so far s it is applicable to Madras had been made in the year 1936. This amendment has been adopted by our state. Hence, it is applicable to the State of Andhra Pradesh. Under clause (e) the value of the property according to the judgment-debtor and the decree-holder alone has to be given in the sale proclamation. The framers of the Civil procedure code did not specifically make it obligatory on the part of the Court to furnish its valuation in the sale proclamation. The value contemplated to be furnished either by the decree-holder or by the judgment-debtor under clause (3) is only one which is as accurate as possible. The use of the words ' as accurately as possible' indicates that the particulars should be approximate and to the best of their knowledge, but not fully correct in every respect. The omission in clause (e) of the words ' value given by the court' makes it abundantly clear that the court has no statutory duty or obligation to furnish the same. That apart, it is also not possible for the court it give approximate value of the property sought to be sold by it. The information given by the judgment-debtor and the decree-holder would afford an opportunity to the intending purchasers to assess the true nature and value of the property. Normally the judgment-debtor may try to inflate the value of the properties and the decree-holders, on the other hand, may try to give the value of the properties to be very much less than the real price. The intending purchasers have to bear in mind the aforesaid facts and circumstances and estimate the real and true market value of the properties and make their bids. Hence, the provisions of clause (e) do not support the contention of the appellant.

10. We shall now turn to clause (f) . This is a residuary provision. The provisions of clause (f) must be read in the light of the other clauses. The use of the words ' every other thing which the court considers material for a purchaser to know' in clause (f) indicates that ' every other thing' is not inclusive of the very value of the property. On a careful reading of this clause, we are of the view that the expression ' every other thing' means every other matter or information other than the matter or information specified in clause (e) which would provide a guide for the intending purchaser to assess the true nature and correct value of the property. If the framers of the code intended the court to give in the sale proclamation its own value in addition to the values stated by the decree holder and judgment debtor, clause (e) would have made a specific mention of the same. That apart, as pointed out earlier, it is neither practicable nor possible for the court without an enquiry to give its own value of the property. In the circumstances, we are of the firm view that the expression ' every other thing' in clause (f) should not be construed to take the value of the property as determined by the executing court. The very object and intendment of the furnishing of the particulars , i.e., the value of the property as stated by the decree holder and the judgment-debtor and every other thing which is material, is only to facilitate the intending purchasers in assessing the correct value and true nature of the property. If the value of the property is given by the executing court, all the aforesaid material is really redundant. In order to arrive at the true nature and value of the property, the information and particulars specified in clauses (e) and (f) are required. This residuary clause (f) , therefore, is intended to cover all matters and other than the market value of the property sought to be sold. Clause (f) is not susceptible of any interpretation other than the one indicated by us. This view of ours gain support from the decision of the Madras High court in Srinivasan v. Andhra Bank, AIR 1949 Mad 398.

11. We may also notice that it is not obligatory on the part of the executing court to make a regular enquiry about the market value of the property and furnish the same in the sale proclamation. Reference in this regard may be made to Rule 199 of the Civil rules of practice, which would throw some light on this aspect of the same. Rule 199 provides for an application for leave to bid at the sale to be filed by any decree holder who intends to take part in the court auction. Sub-rule (2) thereof enjoins the executing court to fix the minimum price for which the decree-holder can bid provided leave is granted to him. The intendment of the aforesaid rule is to prevent the decree holder from knocking away the property for a low price. There may be cases where third party bidders for reasons best known to them are not forthcoming,. There is every danger in such cases of the property being purchases by the decree holder himself for a low price. The court, in such cases, has a duty to protect the interest of the judgment debtor. If the framers of the code had intended that the executing court shall fix the upset price after assessing the true market value of the property sought to be sold, clauses (e) and (f) of sub rule (2) of rule 66 of the order 21 would have been differently and suitably worded. Judged from any angle, we are satisfied that the executing court is not bound to fix an upset price when there is a wide disparity between the values given by the judgment debtor and the decree-holder for stating the sale proclamation.

12. However, we may state that the court is not prevented in approximate cases from indicating the approximate value of the property. In other words, there is no prohibition for the executing court, if it thinks it just, proper and necessary, from including the market value of the property on the basis of the material available to it. (See AIR 1949 Mad 398). Where there is a very wide disparity in the values given by the judgment-debtor and the decree-holder, it is not only desirable but fair and proper for the executing court to ascertain either through a commissioner or an Amin the approximate value of the property and incorporate the same in the sale proclamation (Vide : AIR1955Mad720 ). Such procedure would undoubtedly afford a safe guide for the intending purchasers to make up their minds in estimating the true nature and value of the properties.

13. We may also point out that the provisions of clauses (e) and (f) of sub-rule 2 to Rule 66 of Order 21, C. P. C. Do not require the court to fix an upset price. Nor is the court empowered to fix the amounts indicated by the decree holder and the judgment debtor as the upset prices. The practice of fixing two upset prices by the court is not permissible under the provisions of the C. P. C. Apart from its being unworkable and leading to anomalies. It must be deprecated. What the court has to do is to mention both the values furnished by the judgment debtor and a decree holder in the sale proclamation without fixing any upset price. See C.R.P. No. 784/1950; C.R.P. No. 1382/56 dt: 7.2.1957 of the Madras High court and also Kuppammal v. Devendra Iyer (1957) 2 Mad LJ 134.

14. In the light of the foregoing discussion, we shall examine the facts of the present case. The decree holder has stated the market value of 'A' schedule property as Rs. 25,000/- however, the appellant judgment debtor furnished the same at Rs. 1,20,000/-. The court amin has indicated the value as Rs. 40,000/-. The sale proclamation issued by the executing court furnishes the market value given by the decree holder, the judgment debtor and the court Amin. The court below has rightly furnished in the sale proclamation in the valuation given by the court Amin in addition to that of the judgment-debtor and the decree holder. In the circumstances, we do not find any merit in the contention of the appellant that the order of the court below is vitiated by material irregularity in the exercise of its jurisdiction. The court is not bound in law to make a regular enquiry relating to the market value of the ' A' schedule property. The prima facie value as disclosed from the report of the Court Amin has been incorporated in the sale proclamation. In the circumstances, we are satisfied that there is no error or jurisdiction justifying our interference in this revision petition. The course adopted by the court below, in our view, is perfectly valid, just and proper.

15. In the result, the revision petition fails and is dismissed but, in the circumstances, without costs.

16. Petition dismissed.


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